The Leveson Inquiry has broken new ground for court and political reporting: for the first time a public inquiry held under the Inquiries Act 2005 has been played out live on the internet. Online media provided a chance for ordinary members of the public, non-profit groups and small media organisations to expand and question mainstream media narratives, as they watched, blogged and tweeted proceedings. This paper considers public access to the inquiry, arguing that digital communication has allowed for a newly liberated form of debate and enhanced the public's entitlement to report what they hear in court, in accordance with a longstanding legal tradition of open justice. Additionally, it has improved UK citizens' right to freedom of expression - which includes the right to receive as well as impart information and ideas. The public's increased access to inquiry resources and reporting tools does not necessarily indicate a greater role on the 'news stage', but it opens up the possibility for greater public influence on news discourse, and beyond that, political debate.

The Leveson Inquiry, established by the Prime Minister in July 2011, was the first public inquiry to have a significant online presence outside the courtroom: while the Chilcott Inquiry (into the Blair government’s decision to invade Iraq in 2003), which heard evidence from 2009 to 2011 was also broadcast live and tweeted about, it was not a public inquiry under the Inquiries Act 2005. Other inquiries held under the Act have also made online material available, but not in the detail provided on the Leveson Inquiry’s site, nor attracted such a strong and vocal external online debate around proceedings.

The Leveson Inquiry’s official online activity during Part One of proceedings[1] has included: live and archived video of all hearings, except a rare few with anonymity or special provisions; transcripts of each sessions, uploaded swiftly following hearings; copies of public rulings made by Lord Justice Leveson; the written submissions made to the inquiry after they have been formally read-in and information about the inquiry. Shortly after Lord Justice Leveson announced the report’s release in a televised statement on 29 November 2012, hyperlinks to the four sections of the report and the executive summary were published on the website, as the press embargo lifted[2]. The inquiry had its own Twitter account, although it only published one update between July 2012 and the report’s publication in November and it was used for posting notifications about updates to the website, rather than interacting with online followers.

Alongside this official digital activity has been an unofficial stream of commentary and reportage via Twitter. Viewers, including ordinary members of the public, non-profit groups and small media organisations, tweeted and blogged during hearings, which they were able to watch and listen to live online if they did not attend court. Conversations could be easily followed with a Twitter search on Leveson’s name, or other related keywords (such as a witness’s name), with the inquiry dominating journalists’ Twitter use while evidence was being taken[3]. The availability of transcripts allowed writers to quote proceedings at length, beyond media reports, without necessarily watching or attending hearings.

As a result of this official and unofficial online activity, the Leveson Inquiry broke new ground for court and political reporting, as it played out live on the internet. The legal blogger Adam Wagner, a barrister at One Crown Office Row, called the inquiry’s online presence ‘a minor landmark for open justice’ (Wagner 2011). This paper takes a similar position, arguing that the Leveson Inquiry has enhanced the public’s access to proceedings as well as individuals’ right to freedom of expression, which includes the right to receive as well as impart information. It will, however, be suggested that this widened participation only goes so far. While digital communication has allowed for a newly liberated form of debate around the public inquiry, the public has maintained a spectator role, with high profile figures such as well-known journalists, celebrities, lawyers and academics dominating the ‘news stage’ (see Cottle 2000; Keeble 2012): at public events, on social media channels and on mainstream media platforms. Access to inquiry proceedings and reporting tools does not necessarily mean that ordinary members of the public have greater influence on news discourse, or beyond that, political debate. It does, however, offer them the possibility of greater participation.

A tradition of open justice

The principle of open justice and the public’s right of access to court is long-established, even before the famous concept ‘justice must be seen to be done’ was introduced in 1924 (R v Sussex Justices, Ex parte McCarthy, All ER 233). In Geoffrey Robertson’s analysis, the principle was first articulated by ‘freeborn’ John Lilburne (1614-1657), the Leveller, who made the successful submission that no man should be tried in ‘any place where the gates are shut and barred’ (Robertson 2012: 9). While the public is usually free to attend court[4], citizens have often relied on intermediaries to relay accounts of proceedings through the law reports and media coverage. Judges have long recognised the role of the media in enabling open justice: in a recent family court judgment, Lord Justice Munby (then Mr Justice Munby) described how ‘the role of the court reporter is that of public watchdog over the administration of justice’ (Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam): 29).

With the advent of new communication technology, there has been a marked decrease in court attendance: Lord Neuberger, then Master of the Rolls, observed in March 2011 that ‘it is only on rare occasions that our courts are full of members of the public’ (2011: 12). Significantly, there are also fewer intermediaries in court, as the journalists in court and specialised legal correspondents dwindle in number. Joshua Rozenberg, legal correspondent and commentator, has noted that ‘the newspapers don’t provide the service they did [in the past]’ (Aldridge 2010). More recently, Lord Justice Leveson has observed that when he started at the bar ‘there was a local reporter in every court: that is no longer the case’ (2012:3) [5]. While there is limited empirical research in this area, it has been suggested that the financial cost of court reporting has discouraged media organisations from investing resources in regular court reporting (see PA Mediapoint 2009; Watson 2009; Davies 1999).

The disappearance of the ‘watchdog’ in many hearings is worrying, but digital technology has also enabled enhanced access to proceedings in some areas, with the publication of legislation and judgments and judgment summaries for a limited number of courts. In Norfolk County Council v Webster & Ors, Lord Justice Munby also quoted Lord Denning, writing over fifty years before: ‘Every member of the public must be entitled to report in the public press all that he has seen and heard’ (Denning 1955: 64). Denning’s opinion was voiced before the internet had been conceived, but it is the development of online platforms which have helped the public report: members of the public are no longer dependent on editors to report – they are able to publish themselves directly using free online tools. However, these free tools have removed the necessity of media filters, with some worrying side-effects, which various judicial and parliamentary committees and consultations have struggled with, most recently the Law Commission’s ongoing consultation on contempt. Nonetheless, the Leveson Inquiry’s provision of material on the website – with a few rare exceptions where anonymised witnesses gave evidence in closed court – has enabled members of the public this right to report alongside journalists: on social media, Twitter and in the comment sections underneath mainstream media stories.

Public access to inquiry proceedings

Under the terms of the Inquiries Act 2005, section 18, an Inquiry must allow public access to inquiry proceedings and information:

Public access to inquiry proceedings and information:

(1) subject to any restrictions imposed by a notice or order under section 19, the chairman must take such steps as he considers reasonable to secure that members of the public (including reporters) are able:

(a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry;

(b) to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel.

In summary, the public must be able to attend or to see and hear a transmission of inquiry proceedings and to obtain or view a record of inquiry evidence and documents. But what do the provisions require in a digital age? Does it mean that a video and audio stream must be made available online? When should evidence and documents be uploaded online?

These are questions being addressed by inquiries other than Lord Justice Leveson’s. For example, the media recently challenged the Metropolitan Police during the Azelle Rodney Inquiry, which is investigating a shooting by police seven years ago, about the availability of material on the inquiry website: the timing and form of its release[6]. Catrin Evans, representing the BBC, ITN, BSkyB, Guardian News and Media and Times Newspapers Ltd, argued that no distinction could be made between the rights of the members of the public following proceedings online and those in the courtroom:

… [T]he only distinction that could possibly be made, which would be one worthy of any contemplation … would be if there were any material difference between the right of access of the public in this room and the right of access of the public out there, who couldn’t be here. And in my respectful submission, that is a distinction without a difference; that it is not possible to draw it (Evans 2012).

In the event, material was made available on the website after it had been formally read-in, unless a specific reporting restriction was applied. The inquiry’s website records this, and other decisions, relating to the public’s access to evidence[7].

The Azelle Rodney application indicated a developing expectation of online access to public inquiry material. This online availability of source material is allowing an extension of Lord Denning’s ‘public press’; the 21st century version includes online blogs and forums, Twitter streams and Facebook pages.

The right to receive information

This type of online openness, where the public has direct access to transcripts and video proceedings, has helped also improve the public’s right to freedom of expression, as defined under Article 10 of the Human Rights Act:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

The emphasis is usually on the right to impart information, in media cases emphasising the right to publish, balanced against a claimant’s right to privacy and reputation, for example. Until recently, the right to receive information carried ‘very little weight in domestic law’ (Tench 2010). The right was scrutinised, however, when a consortium of newspapers and broadcasters applied to attend private hearings in the Court of Protection, under a provision in the Court of Protection Rules 2007, which allows reporting if ‘good reason’ can be shown[8]. The media was, for the first time, exercising a pre-existing right to attend and report Court of Protection proceedings (Series 2012: 112-113). The Court of Appeal found in favour of the media, upholding an earlier decision, looking to European cases which had considered a broader interpretation of ‘freedom to receive information’ and the right of access to information. According to Romana Canetti, a member of the Independent’s legal team, it was the first time that the court ‘explicitly recognised that the right to freedom of expression in Article 10 of the European Convention of Human Rights includes the freedom to receive – not only to impart – information and ideas’. ‘In other words,’ she said, ‘the public had a right to be informed, in addition to the media’s right to freedom of expression’ (2012: 48).

The approach taken in the handling of the Leveson evidence appears to follow this principle. Access has been extended beyond the media’s right to receive and impart: the public has enjoyed its right to receive information. Furthermore, this information is received directly, at source, without relying on journalists’ interpretations and news choices. This unmediated information also helps the development of public reportage and commentary, via blogs and social media, which suggests that a recognition of the direct ‘right to receive’ helps facilitate the public’s entitlement to report, as set out by Lord Denning in the mid-20th century.

Editorial filters

The ability to receive information directly is significant because it enables the public to access information without relying on media filters, where editors and reporters select new items for publication through a ‘complex multifaceted gatekeeping process’ (Clayman and Reisner 1998), subject to various competing interests. The phone hacking scandal, which led to the creation of the inquiry, epitomised how a definition of ‘newsworthiness’ based on the public interest can be undermined by a combination of professional, political and commercial interests and this is what led to a collective redaction of developments in the phone hacking story up until July 2011, with notable exceptions (Bennett and Townend 2012). Similar redactions can be found in the press’s coverage of Leveson, although any content analysis would require a sophisticated methodology to determine which angles have been selected by which titles.

Patterns can be traced around certain events, as contributors to the LSE Media Policy Project have noted in a series of blog posts, which show how the Leveson report has been framed by the media, using codes applied across media reports on selected days. [9] Sally Broughton Micova’s initial analysis, for example, suggests that newspapers’ coverage extended beyond their own defence – contrary to what might have been expected by media critics – and once past the front page, national newspapers provided a ‘more balanced and complex version of the story’ (Broughton Micova 2012). Further empirical research and analysis in this area is to be welcomed.

It is more straightforward to isolate smaller examples. Private Eye, for example, has found plenty of material for its articles that identified ‘What you didn’t read’ following Leveson Inquiry hearings (for example, issue 1303, 2011: 7). Indeed, Lord Justice Leveson observed, during the session when the journalist Peter Oborne was giving evidence, that:

Private Eye has also been publishing during the course of this inquiry what the newspapers don’t publish. In other words, they’ve gone through a number of stories and said: ‘Actually, it’s rather interesting that this story appeared in this paper but it didn’t cover another aspect’ (Leveson 2012a).

Predictably, Private Eye reported Lord Justice Leveson’s remarks in its next issue, noting that his observation was not reported in a single national newspaper (Private Eye 2012: 5).

Michael Gove MP’s treatment by the press provides an interesting example through which to examine newspapers’ choices. As a former journalist, he has been seen as a defender of the press’s corner and he introduced the idea of Leveson’s ‘chilling atmosphere’ in a speech to the parliamentary press gallery, which was widely reported in February 2012. The Mail on Sunday went so far as to suggest Lord Justice Leveson had considered quitting over Gove’s remarks, to which Leveson responded with a firm statement (Leveson 2012b). Gove’s appearance at the inquiry can be compared with that of a known critic of the press, the Liberal Democrat MP Simon Hughes, who had actively called for the inquiry before it was set up.

Simon Hughes’ appearance attracted mention in the national newspapers, but was overshadowed by the revelation that the police had leant a horse to Rebekah Brooks in 2008[10]. His evidence, which claimed that the Sun had access to his phone records, was used in the headline in pieces in the Guardian (p 9) and Express (p 4) and mentioned in stories, which led with the police horse in the Telegraph (front page), Mirror (p 28) and Times (p 13) [11]. In summary, there were five print stories, two of which led with his evidence. Additional online stories also appeared on the Telegraph, Independent, Guardian, and Mail sites.

Three months later in May 2012, Gove’s appearance attracted a total of 22 print articles: 14 articles of these led with his comments on a free press – in the Telegraph, the Daily Star, the Daily Mail, the Guardian, the Independent, the Sun, The Times, the Daily Mirror and the Daily Express. Additionally there were 30 stories online, on the Mail, Guardian, Independent and Telegraph sites.

This seems to indicate the press found Gove’s comments more ‘newsworthy’ or of more public importance than Simon Hughes’. There are various factors to consider. Gove may have benefited from the fact that the only other witness that day was the home secretary Theresa May, while Hughes gave evidence on the same day as three other witnesses with interesting evidence: Jacqui Hames, who formerly presented BBC Crimewatch, Nick Davies, the investigative journalist whose work brought the phone hacking scandal to light in 2009, and Christopher Jefferies, who was wrongly arrested for the murder of Joanna Yeates and unfairly maligned in the press in early 2011. Another factor could be that the press was eager to pursue a line that fitted with their own agendas – Gove’s comment that a ‘cure’ proposed by Lord Justice Leveson ‘may be worse than the disease’ (Gove 2012). Additionally, stories about media malpractice are often given short shrift (cf. Bennett and Townend 2012: 180).

This isolated example shows how the public is presented with a version of inquiry events that may not be entirely representative of inquiry proceedings. The uploading of transcripts and video to the inquiry’s websites, however, allows the public to receive unmediated information if they wish, and obtain an account of events which does not depend on editorial discretion, enhancing citizens’ right to freedom of expression (the right to receive) and access to court proceedings.

Identifying the public mood

The public mood has been central to the Leveson Inquiry, from its very inception: when announcing the inquiry, Prime Minister David Cameron described how the ‘whole country has been shocked by the revelations of the phone hacking scandal’ (Guardian.co.uk 2011). Yet establishing what the public thinks – or the public voice – is notoriously difficult. When reflecting the public’s view politicians may well rely on the media to tell them what the public thinks, but – as shown above – media self-reporting is vulnerable to competing interests, resulting in markedly selective reports. Public opinion polling is perhaps the most reliable method of assessing public mood and allowing the public a voice, but there are two major factors which should be considered when assessing the results data: the way the polling questions are framed and the way the media reports the results.

YouGov, a national polling organisation, was commissioned to run three separate polls: one by the Hacked Off campaign, one by the Media Standards Trust, and one by the Sun. The findings of the first two polls contrast with the last poll (Kellner 2012a). Four in five voters wanted ‘an independent body established by law’ to regulate journalism but only 24 per cent wanted ‘a regulatory body set up through law by parliament, with rules agreed by MPs’, prompting YouGov president Peter Kellner to ask how we can ‘reconcile these two apparently contradictory findings, given that they amount in practice to the same proposal?’ His explanation lies in the construction of the questions and the positioning of words like ‘independent’ and ‘MPs’. ‘It is a matter of framing’, he argues. ‘We don’t like the idea of politicians curbing the freedom of speech; but neither do we want editors and publishers remaining in charge of regulation’ (ibid). In an interview for BBC Radio 4, he defended the polls, arguing ‘it is perfectly reasonable to ask the questions in different ways because that whole issue of framing the debate is part of what the debate is about’. His final comment relates to the availability of the original data:

…because we’ve put it all up on our site, people can see exactly what we’ve asked, they can see the bits that the Sun picked and which they didn’t pick and actually it’s not simply a question of whether people notice it in the Sun or not… people do look at what we put on [the] site and people start blogging and tweeting about it. This is a very, very transparent process. (Kellner 2012b)

In other words, the availability of the data in PDF format enhances public access to information. However, it seems likely most members of the public would access the version of the poll from the media publication, rather than at source.

A Times-commissioned poll provides another useful example through which to examine factors affecting the media presentation of a poll. A poll conducted by Populus for The Times showed that 59 per cent of respondents believed that the Leveson Inquiry ‘will lead to more effective regulation of the press’ (Populus 2012). While the full Populus poll showed this result (the data is available in PDF format on the company’s site), The Times did not include it in its news report (see Kishtwari and Coates 2012), preferring to focus on a different proposition that had been put to respondents: 61 per cent agreed that the ‘Leveson inquiry has lost its way as a procession of politicians, journalists and celebrities have simply tried to defend themselves against one another’s allegations’ (Cathcart 2012). The Times’s version was markedly selective in presenting its findings in the version that would be most read by members of the public.

The Leveson Inquiry team was interested in this poll, and in his fourth written statement to the inquiry, The Times’s editor James Harding[12] responded to a request for information about the editorial process that led to the publication of the article. Harding defended the coverage by saying that ‘a poll is almost never published in full in the paper’:

Constraints on space in the paper, the relevance of the questions to the general public and the judgment about the newsworthiness of the poll findings always determine how many questions and answers are printed and how prominently (Harding 2012).

When explaining his newspaper’s omissions over phone hacking before July 2011, Harding blamed the response of official sources as well as the tendency to see an agenda in a rival publication’s reportage (see Bennett and Townend 2012: 175, 178). In this more recent example, he explains that the editorial decision was based on a judgment of ‘relevance’ and ‘newsworthiness’.

Harding’s comments illustrate how ‘newsworthiness’ decisions affected the representation of the public mood in this latest example. In this way, polls and reports of polls are limited in their presentation of public mood and vulnerable to selective framing. Polling results are, however, more reliable and empirically grounded than media reports based on an individual commentator’s speculation.

Incidentally, but relevant here, Harding’s correspondence with the inquiry team led to another illuminating example of selective reporting by the mainstream media. The Times article which contained this poll data actually led with the news that the Leveson Inquiry would be parodied in the new BBC series of The thick of it and was headlined online: ‘The joke is on Leveson in new series of The thick of it’ (Kishtwari 2012). It is more probable, however, that the inquiry team was interested in The Times’s poll, rather than the satirical mocking of the inquiry, which is indicated by Harding’s focus on the poll in his answer. In October 2011, however, the Independent picked up on Harding’s July statement, claiming that the inquiry had had a sense of humour failure:

… the editor of The Times was required to write to Lord Justice Leveson earlier this summer explaining why the paper had run a short story revealing that the BBC2 show’s current series would satirise a public inquiry run on similar lines to the press ethics inquiry (Milmo 2012).

This version of events, which has been repeated elsewhere[13], is not convincing and examination of Harding’s letter suggests that the inquiry had no interest in The Times’s reporting of The thick of it, but was rather interested in The Times’s presentation – or decision to run – the poll. If the public were given access to the inquiry’s letter to The Times, this puzzle might be resolved.

Role of social media

Just as press coverage has varied, so has use of social media platforms: Twitter and blogs have allowed a creative interaction with the inquiry beyond public interest commentary and reporting. While the public’s use of social media has been flippant on occasions – for example, one of the inquiry counsel gained unfair notoriety during an episode in which Twitter users teasingly mocked her for apparently gazing at witness Hugh Grant during his evidence, tagging their updates ‘#womanontheleft’ – social media has played a substantial and important role. It has been a chance for members of the public, non-profit groups and small media organisations to expand and question mainstream media narratives.

Media omissions have been documented by media academics and others, some of which have been noted in the mainstream press. As one example, the circumstances around the murder of the private investigator Daniel Morgan in 1987 have been discussed online and in blogs, despite the media’s fluctuating interest in the story. Most recently, some of the detail went ‘mainstream’ when the legal blogger David Allen Green used his New Statesman blog to draw attention to the failed police inquiries and to make a call for a judicial review (Green 2012). Similarly, journalists such as Richard Peppiatt and Chris Atkins have used online media to draw attention to their work that exposes dubious press behaviour, alongside production of material for mainstream organisations, such as Channel 4 and the Guardian. [14] Finally, blogs have provided a platform to discuss the selective presentation of polling results (see, for example, Hirst 2012; Kellner 2012; Cathcart 2012).

While its role is important, the influence of social media on inquiry proceedings and public consumption of the inquiry should not be overstated. This paper has argued that digital communication has allowed for a newly liberated form of debate and enhanced the public’s entitlement to report and has improved UK citizens’ right to freedom of expression – which includes the right to receive as well as impart information and ideas. But less clear is whether this increased public online engagement – facilitated by enhanced access to proceedings and digital media tools – has affected news discourse and beyond that, political debate.

Simon Cottle has identified in his review of ‘news access’ and the ‘news stage’, ‘who gets “on” or “in” the news is important’:

It is the voices of ‘elite’ journalists, lawyers, celebrities and – occasionally – academics who have often dominated the Leveson conversation: at public events, on social media channels and on mainstream media platforms. While the public has access to the data at source, ordinary public voices may not change the dominant narrative constructed by newspapers, which informs the wider political debate. As shown above, there are issues with selective media reporting of public voice, based on national polls.

Members of the public were often confined to a spectator role during proceedings, as national newspapers extensively reported Leveson’s investigation into their own industry’s failings. Richard Lance Keeble (2012) goes further still, to suggest that the Leveson Inquiry is ‘best understood as largely spectacular theatre’:

‘Ordinary’ people, such as the parents of murdered schoolgirl Milly Dowler, have been allowed to play their harrowing bit parts in the Great Leveson Theatre Show before being condemned to obscurity in the wings.

Nonetheless, access to evidence helps enhance the public’s access to proceedings and its entitlement to report in the ‘public press’ and the right to receive information. Improved digital access to proceedings and communication platforms at least allows for the possibility for members of the public to influence media and political discourse. The mainstream media publications may continue to control the biggest gateways to information, but members of the public are able to choose smaller alternative entrances if they wish to get direct access – they are open to all.

Notes

[1] The inquiry’s terms of reference also set out details for a Part Two, which would examine ‘the extent of unlawful or improper conduct within News International, other newspaper organisations and, as appropriate, other organisations within the media, and by those responsible for holding personal data’. On 29 November 2012, the Prime Minister said it was the government’s full intention that it would take place, but a timescale has not been announced

[2] Members of the media were given access to the publication before the report was published and the embargo lifted, but only for a short period of time in the late morning on the day of publication under ‘lock-in’ conditions

[3] According to research findings published by a PR consultancy, Portland, using data collected by the media platform Tweetminster, tweeting journalists were preoccupied by the Leveson Inquiry from April to June 2012. Its index, which monitored just under 288,700 tweets by journalists from national news media organisations, showed that the top five most popular news stories across media from April to June 2012 were ‘Leveson’, ‘David Cameron’, ‘Police’, ‘Murdoch’ and ‘Jeremy Hunt’ (Flanagan 2012; Townend 2012)

[4] Notable exceptions include the Court of Protection, where hearings are held in private unless the judge permits members of the public and/or media to attend, and the family courts, which journalists (not the public) can attend but are bound by strict reporting restrictions

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Cathcart, Brian (2012) Public backs Leveson, Times poll says (but The Times doesn't), Hacked Off blog, 21 June. Available online at http://hackinginquiry.org/comment/public-backs-leveson-times-poll-says-but-the-times-doesn%E2%80%99t/, accessed on 18 December 2012

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Judith Townend is a PhD candidate at the Centre for Law, Justice and Journalism, City University London, where she is researching defamation, privacy and journalistic process. She co-ordinates the 'Open Justice in the Digital Era' project and recently edited a collection of working papers by leading academics and practitioners entitled Justice wide open. She contributes to a number of publications, including the Inforrm media law blog, Index on Censorship and Guardian.co.uk. She studied social anthropology at the University of Cambridge before pursuing a career in digital journalism and research.